NSW Bar Association calls for a new approach to Aboriginal imprisonment

22 September 2017

The Bar Association of NSW's submission to a Law Reform Commission inquiry into First Nations incarceration calls for a new approach to sentencing which takes into account the deprivation and disadvantage inherent in an individual's Aboriginal background.

The association also calls for an end to mandatory sentences, which make it impossible for courts to make any allowance for such disadvantage in their decisions.

The rate at which Aboriginal people end up in jail is appalling and in NSW last year Aboriginal people were 3 per cent of the population, but 24 per cent of the prison population.

Some improvements look straightforward. For example, one third of Aboriginal prisoners are now on remand, but cultural obligations can cause some Aboriginal prisoners to breach bail conditions and be returned to prison. The Law Reform Commission has suggested courts should take cultural considerations into account in bail decisions. The Bar Association suggests courts should grant bail more readily where community safety is not an issue.

The legal system is an instrument of oppression for First Nations people and there desperately needs to be a way to acknowledge, judge, and where necessary, punish crime in a culturally appropriate, meaningful and sustainable way.

This submission address some of the current issues under a this regime but only self-determination by the First Nations will there be true justice and a real beginning for our people to move forward and/or begin to mend from hundreds of years of oppression, displacement, gross abuses and paternalism.

The Law Council of Australia’s Policy Statement on Indigenous Australians and the Legal Profession (February 2010)2, having regard in particular to the following:

that Indigenous Australians have been subject to significant dispossession, marginalisation and discrimination, and continue to experience widespread disadvantage, including in the areas of housing, health, education, employment, access to justice and participation in the political, economic, social and cultural life of the nation;

that Indigenous Australians are significantly and unacceptably over-represented in Australian prisons and the criminal justice system;

that Indigenous Australians, like all Australians, have a right to equality before the law, individualised justice, due process before the law and to be free from discrimination of any kind, in particular that based on their Indigenous origin or identity;

that Indigenous Australians, like all Australians, have the right to physical and mental integrity, liberty and security of person;

that Indigenous Australians have the right to self-determination and to recognition and protection of their distinct culture and identities, as provided under, inter alia, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the United Nations Declaration on the Rights of Indigenous Peoples;

that Indigenous Australians, through their representatives, have a right to be consulted about and participate in decision-making concerning legislative and policy changes affecting their rights and interests; and

the importance to Indigenous Australians of alternative justice models which involve greater participation of the Indigenous community.

In approaching the proposals and questions in the Discussion Paper, the Joint Working Party has likewise recognised and sought to apply the following commitments made by the Law Council in its Policy Statement on Indigenous Australians and the Legal Profession:

promoting, as a matter of the highest priority, methods for reducing the over-representation of Indigenous